Trump Consolidates Gay Rights

Liberals who call Donald Trump anti-gay are doing it only out of reflex, not out of any thoughtful consideration of who the man is and his record, such as it is. A reader pointed out in the comments thread here last night that Trump is the first president in US history to enter office supporting gay marriage.

Lesley Stahl: One of the groups that’s expressing fear are the LGBTQ group. You–

Donald Trump: And yet I mentioned them at the Republican National Convention. And–

Lesley Stahl: You did.

Donald Trump: Everybody said, “That was so great.” I have been, you know, I’ve been-a supporter.

Lesley Stahl: Well, I guess the issue for them is marriage equality. Do you support marriage equality?

Donald Trump: It– it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.

Lesley Stahl: So even if you appoint a judge that–

Donald Trump: It’s done. It– you have– these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.

You know what? I’m fine with him saying that. I did not support Obergefell, I believe the legal scholars who say it’s poorly reasoned, and I would be pleased to see it overturned. But Obergefell is a decision that’s widely supported in our culture, and will be gaining higher levels of support as the elderly die. I see no reason to waste political capital attempting to reverse it. (Note well that a reversal would only mean each state gets to decide its own marriage law. Most states would pass same-sex marriage at once, and those that didn’t would get there within a decade.)

It’s far, far more sensible for a Trump administration and conservative activists to put their attention on protecting religious liberty in an Obergefell world, both through laws and by confirming judges, especially Supreme Court justices, who have a strong sense that religious schools and institutions must not be discriminated against for practicing their faith with regard to marriage, family, and sexual expression. This is where a reasonable compromise can be achieved. It’s not going to thrill either religious conservatives or LGBT activists, but it’s something we can live with. Plus, it will be a great thing if the Trump administration ends the federal government’s Title IX crusade, especially on the trans front. Those issues are the ones for conservatives to hold the new president’s feet to the fire on, not the overturning of Obergefell.

The thing to keep in mind is that with President Trump, the biggest gay rights gain in history — the constitutional right to same-sex marriage — is safe. There will almost certainly never be another US president who doesn’t affirm the right to gay marriage. If you insist on seeing Trump as anti-gay, you simply aren’t paying attention, or you’re the sort of extremist who sees failure to endorse every single thing the activist cadre demands as a sign of bigotry. In which case you’re being an unserious person, and should probably huff off to your safe space and try to come to terms with reality.

UPDATE: A reader writes:

I really liked your post on Trump and the gay marriage concession. But!

Did he give too much too soon?

I do think it’d be useful to make more hay of the concession. Maybe in my ideal world he says something like this… Or I guess not my IDEAL world, but in order to make the most of the moment, a responsible Trump could say:

Look, I understand that progressives are terrified that a strong desire to overturn Obergefell will be the litmus test for judges I appoint. It won’t be. I see no progress in constantly battling back and forth on this issue. But in return for that consideration we will expect your support for judges who DO have respect for religious liberty. You think that’s bigotry, but listen: you lost. Moreover, the elements of your coalition who spent eight years calling McCain and Romney hopeless bigots should be ashamed of themselves.

I’m aiming for a compromise–a generation-long detente of live and let live on the culture war stuff. Let’s be honest: You won a good deal of the culture war. And honestly, not all of that was bad. But you went beyond victory and demanded annihilation. You aren’t going to get it. Let’s define a new normal and move on.

If you insist on digging in your heals I can’t promise I can call off the dogs. I’ll be forced to rally to the base, and that means moving the Overton window a generation in reverse on LGBT while we ignore everything else. Which includes things you care about. You and I might not agree about how to improve wages for working class people, but I am coming to the table on those issues, too. Guess what: Saying that we ought to have an increase on the marginal rate for Silicon Valley billionaires is NOT the same exact things as Stalinist Russia. People who say that are not serious. Just like people who tarred Romney and McCain and the Little Sisters of the Poor as bigots are not serious. About a week ago you thought you were walking away on all of these issues, and you were going to force it down the throats of any dissenters, but there were more dissenters than you thought. So. I can follow the Obama model and get what my coalition wants by using executive orders and stacking the courts. I would strongly prefer to find some areas where we can compromise and make progress.

But let’s be clear: this is an olive branch. Refuse it, and I will use it more conventionally, as a stick with which to beat you. Some of you deserve that and worse, but here we are. You can have your gay marriage, but a religious school ought to be able to hire people who, you know, agree with the central beliefs of the school. Using federal agencies to ram radical gender politics into local schools is nuts and I won’t stand for it. Some religious lady who bakes cakes ought not be forced to message those cakes with ideas that run counter to her beliefs. I am going to be honest here; I don’t think that a college kid wearing a sombrero is a sign of the apocalypse, and I suspect that a lot of rock-ribbed, typically Democrat leaning union guys agree with me on that. Maybe those college kids ought to be more sensitive to the feelings of others. OK. Maybe TV producers ought to clean up their language in deference to traditionally minded parents. Maybe the freaking NFL could cut back on Viagra ads so people can watch a Jets game without having to explain erectile dysfunction to their elementary school kids. Maybe there are racists in our tent right now. OK. You have some radical communists, and cynical people who support unfettered immigration because it means votes for you.

But gay marriage? I consider it law of the land, and probably a bridge too far. Certain members of my coalition think that’s nuts and are demanding radical revision. I think that’s the wrong approach, and I will continue to consider it the wrong approach until you prove me wrong. There is a chance we can work this out, but that’s not going to happen if people like Mitt Romney can’t come to the table without being equated with the KKK. You want to play ball? There is not a lot of time. I have two years until mid-terms. I need to get a lot done. I have the power to cram stuff through and I will if I have to. But there is an opportunity here. I am not the radical that you believe me to be. I am eager to prove that.

That’s different than saying hey, I guess you guys won on gay marriage so let’s move on to the next thing.

126 Responses to Trump Consolidates Gay Rights

quote: “Over the past few years liberals have underestimated the degree to which conservative Christians have felt vulnerable as a result of stuff like the firing of Brendan Exchange, religious liberty disputes and so on. But I think that conservatives (particularly religious conservatives) underestimate how vulnerable many gays feel.”

This is a great point. It is also why, as others have noted, that it would be wonderful if Trump would work together with Congressional Republicans and Democrats to pass federal legislation guaranteeing both gay rights (civil marriage, ban on housing and job discrimination, etc.) and significant religious liberty exceptions for churches and religious institutions, as well as very limited exceptions for businesses (e.g. only related to marriage ceremony objections). The Utah compromise that sought to uphold the rights of both groups strikes me as a good model. Gay rights and religious liberty need not be opposed, and the fears of both groups could be reduced if their rights were actually addressed together in legislation that allowed them both to live their lives and pretty much be left alone.

Trump prides himself as a dealmaker. If this issue interested him, could he bring the two parties together and pull this off? I wouldn’t be on it, but one can dream. It sure would be nice to take this aspect of the “culture war” out of our politics.

“Peace will come when social conservatives say “I don’t believe that same sex marriages should take place, but it is not my place to impose that belief on others.””

Peace will come when SSM activists say “I don’t believe there is anything specially valuable about men and women coming together to have children, but it is not my place to impose that belief on others”

I hope Responsible Trump will find a way to protect religious liberty from the Progressive Onslaught that will follow his presidency. Most people don’t follow the nuances of policy. Politics is a bloodsport between two bitter Statist rivals using the reins of government to bash each other over the head. (See “Why Americans Hate Politics.”) I hope to God President Trump is the one who can seal the broken steam valve created by Obergefell. At the same time, something like the Utah Compromise is the only way out of this mess–or civil war, if you prefer that. I would like to see everyone live and let live. “Freedom means freedom, for everyone.” –Dick Cheney, of all people. Live and let live and let the federal government be as dull as my city council meetings.

Re: That decision demonstrates why I call him political. He is not political:Republican, or political:conservative but political:the-moral-authority-of-and popular-support-for-the-court-must-not-be-endangered.

Well, he’s basically saying “There’s no obvious constitutional issue here so let the political branches of government solve it.” Which is exactly how the Court should behave when people, whether Left or Right, try to achieve through judges what they cannot achieve via the other two branches of government.

Carlo writes, “Peace will come when SSM activists say “I don’t believe there is anything specially valuable about men and women coming together to have children, but it is not my place to impose that belief on others”

Huh? As a gay man who favored legalizing SSM, I fully believe (like you) there is something specially valuable about men and women coming together to have children. This is what my parents did! I have no desire to prevent that from continuing to happen. I just do not see why believing this is in any way inconsistent with supporting SSM…nor do my parents, btw.

Having lived in very liberal cities, and now in the South, I can honestly say that there is nothing wrong with traditionalists having the right to express their religious views without being forced to act in ways inconsistent with their beliefs. It’s called freedom. I would encourage all liberals to step outside of their bubble and visit those areas of the country that they may have marginalized, or in some cases, outright rejected. They might be pleasantly surprised by what they find. All I know, is that I always look forward to coming back to the South now after visiting those places where I had formerly lived, and I am grateful for the generally respectful manners that I see practiced here nearly every day among an ethnically diverse and vibrant population.

I’m not putting any confidence in Trump, here, but good luck to him findings a conservative jurist who perceives the incoherence of Roe, and so will overturn it, but who will not overturn Obergefell, the roots of whose finding are in Casey, and Casey in turn in Roe.

One can plausibly argue that Roe and abortion rights more generally involve harm to a third party, and that the harm to the unborn child outweights the privacy interest of the mother. The same argument cannot be made for Obergefell.

Also, public opinion is at a long term stalemate on abortion, the same isn’t true of gay marriage.

as well as very limited exceptions for businesses (e.g. only related to marriage ceremony objections)

RR generally strikes a good balance, but this is mislocated. Businesses are not entitled to point by point exceptions. The category of exception, which does have firm foundations in constitutional jurisprudence, is that government may not compel speech. Selling a can of corn to a gay man is not speech. Photographing a “wedding” when you believe it is no such thing, or icing a statement onto a cake, is speech, even if it is done for commercial profit.

Also, public opinion is at a long term stalemate on abortion, the same isn’t true of gay marriage.

As Justice Scalia rightly pointed out, the Supreme Court justices have life tenure so that they can follow the law, not respond to public opinion. The constitutional issue is not whether abortion is a moral choice, or not. The constitutional issue is whether the police powers of the state have jurisdiction to intervene. They do not — whatever the state of public opinion.

I might add that a long term stalemate is a poor basis for imposing draconian criminal penalties on a common and widespread practice.

Now, if 70-80 percent of the public were firmly committed to the notion that a zygote is just as much a person as Rod Dreher is, deserving exactly the same legal protection, then, by the very logic of Justice Blackmun’s opinion, a case might be made out that the rights of this “person” trump the autonomy of the pregnant woman. But we don’t have that either.

Obergefell is constitutionally unsound, but overturning it would have rather limited effect on the ability of a gay couple to obtain a marriage license, given that absent that ruling, states would be quite free to grant such licenses, and many would. However, I expect it will be reconsidered someday when its logic is applied to some entirely unrelated set of facts, and the justices are confronted with the law of unintended consequences.

“Anyone who thinks Obergefell is going to be overturned is living in fantasy land. No court is going tell people, “Sorry, we made a mistake. You aren’t married any more.” My guess is his appointment is going to look far more like Anthony Kennedy than Tony Scalia.”

Justice Kennedy should retire at the end of this term, if not sooner. He got on the Court only because of establishment Republicans like Richard Darman and Jim Baker–and that establishment is in the process of being sidelined or destroyed. If Kennedy retires before that happens, he will earn some plaudits. If he waits, he may only earn contumely from all sides.

Trump should be educated about *Casey*, and he should harshly criticize it, as Lincoln would have done.

Your point would have more salience if legislatures had passed the right of gay marriage. Instead, a judicial power grab made gays marriageable in law. So it’s much easier to say “Sorry, you aren’t married anymore–to your legislature, go.”

“Also, public opinion is at a long term stalemate on abortion, the same isn’t true of gay marriage.”

The reason that’s true is that in the late 80s, the philosopher Don Marquis wrote “Why Abortion Is Immoral,” regarded by philosophers as easily the best argument against abortion. Without that, I doubt pro-lifers would now be doing as well as they are. The flip side is that the only argument against SSM that most people are familiar with–that of Robert P. George–is a terrible argument. It relies heavily on a kind of sexual morality that few people share.

Re: Obergefell is constitutionally unsound, but overturning it would have rather limited effect on the ability of a gay couple to obtain a marriage license, given that absent that ruling, states would be quite free to grant such licenses, and many would.

At which point the Constitution (unless read in some weirdly skewed way as it was under Jim Crow and miscegenation laws) would require all states to recognize those marriages just as they do with divorces, adoptions and custody orders done in other states.

I disagree. There is a glaring contradiction between affirming that society should value and give special protections to families where children can grow with their natural parents, and so-called “marriage equality.”

And SSM is just the final straw. Once you establish that marriage is really a free sexual union meant to make the couple “happy” which can be ended at will (as opposed to a binding contract meant to protect the offspring), you are implicitly saying that as a society we do not recognize any special value in the natural family. You may think this will not have serious consequences. I think you will be surprised. Ideas have consequences.

At which point the Constitution (unless read in some weirdly skewed way as it was under Jim Crow and miscegenation laws) would require all states to recognize those marriages just as they do with divorces, adoptions and custody orders done in other states.

I took that one on years ago. A fascinating precedent can be found in an early Massachusetts case freeing the enslaved lady’s maid of a woman married to a Louisiana plantation owner, who was visiting her parents in Massachusetts. The court ruled that the young lady was free, not because entering the state made a change in her status, but because under Massachusetts law, there simply is no authority to hold her in slavery.

Application to same sex marriage: In Louisiana, there simply is no such thing as a marriage between two individuals of the same sex. If there were, of course the Massachusetts marriage would have to be recognized. But there is nothing to offer the couple from Massachusetts. What they were joined by in their previous state of residence simply doesn’t exist in Louisiana.

I note once again that the anti-miscegenation laws did not deny that a man of one color and a woman of another color could be married… they asserted that such a marriage should not be allowed to take place, and should be a crime if it did. That is very different from saying “You are free to go, even to cohabit, but we simply don’t have a license for what you share.”

“Republic, DJT!”
The president of the executive branch of the federal government doesn’t need to affirm any marriage. The State was never a suitable substitute for the approbation of community. The law just needs to accept a voluntary contract between adults. It’s up to your friends and family– your real community– to speak or forever hold our peace.

“I disagree. There is a glaring contradiction between affirming that society should value and give special protections to families where children can grow with their natural parents, and so-called “marriage equality.”

And SSM is just the final straw. Once you establish that marriage is really a free sexual union meant to make the couple “happy” which can be ended at will (as opposed to a binding contract meant to protect the offspring), you are implicitly saying that as a society we do not recognize any special value in the natural family.”

But why is SSM marriage the “final straw” instead of, for example, no fault divorce. This is what I object to — heterosexuals have done all they can to destroy the institution of marriage but are now blaming gays who want to marry as the final straw in the destruction of marriage. When I see a strong movement to make divorces (heterosexual and SS) much more difficult to obtain legally, I will take the people who make this argument seriously.

Re: The flip side is that the only argument against SSM that most people are familiar with–that of Robert P. George–is a terrible argument. It relies heavily on a kind of sexual morality that few people share.

I would go farther than that: most people never did share it: that argument was always an airy-fairy dialogue among ivory tower philosophers which found little purchase at ground level– even among the non-ecclesial elite.

“I would go farther than that: most people never did share it: that argument was always an airy-fairy dialogue among ivory tower philosophers which found little purchase at ground level– even among the non-ecclesial elite.”

Pretty harsh, but I’m not totally unsympathetic to your description. That doesn’t mean defenders of traditional marriage can’t come up with something better. I’ll give you one way of making the case against SSM that can never be called “airy-fairy.”

Does marriage mean (does it entail) that procreation is relevant for all married couples *qua* married, or only for some married couples? This question must be answered in order to avoid begging the question.

“Relevant for,” as used here, applies as well to sterile and aged opposite-sex couples, who cannot procreate for practical biological reasons; all the same, procreation is theoretically relevant to their marriages, i.e., relevant in principle. (Suppose I can’t speak because I’m hoarse; that doesn’t mean speaking is irrelevant for me.)

I used to think advocates of same-sex marriage (“SSMers”) can take the view that procreation is relevant for opposite-sex couples but not same-sex couples, and accordingly that marriage may, but need not, be about procreation. Later I realized that such a thing is nonsense.

YES, procreation is relevant for opposite-sex and not for same-sex couples (and by procreation I do not mean only child raising but child *bearing*). NO, this is not a simple fact about the meaning of marriage. That’s because to regard marriage in that way is to make it incoherent, indeed contradictory. Marriage cannot both be about procreation and not about procreation.

Apparently I got confused earlier about where the antecedent leaves off and the consequent begins–confused about the difference between procreation as a description of certain couples’ marriages and procreation as a criterion of marriage. (Presumably they don’t make that kind of elementary mistake in the Yale philosophy department.)

SSMers must insist that, on a “proper” conception of marriage, procreation is in fact irrelevant for *all* couples as to the meaning of, and the very nature of, marriage. Bob & Sue have some cute kids. Nice! But that’s a totally irrelevant fact about marriage as such. Having kids is a personal and psychological fact about a married couple’s wishes, and not at all about the public and social meaning of marriage. Or so SSMers must believe.

That way of thinking is self-defeating. For it cannot be true that procreation is irrelevant to the marriage *qua* marriage of opposite-sex couples. While procreation may be *inapplicable* to some opposite-sex married couples, such as those who don’t want children, it isn’t *irrelevant* to their marriages. Procreation is a feature of marriage, not a bug.

Carlo writes, “Incidentally, I am on record affirming that either divorce should be made much harder or civil “marriage” should be abolished altogether.”

I accept that you are on the record about this (and that is all I can hold you responsible for). But precious few who portray SSM as a threat heterosexual marriage are anxious to restrict the ease with which heterosexuals can get out of their marriages. I think you are the exception to the rule on this.

While I’m here though, I have a question. First of all, unlike many liberals, I don’t think the law should force people to bake a wedding cake for a gay wedding–wedding cakes aren’t a basic right. (I do think the law should bar descrimination regarding actual rights though, including health care, jobs, and housing.) But here’s my question: how does baking a gay couple a cake violate anyone’s religion? If you believe that homosexuality is a biblical sin, okay, but the bible says not to practice homosexuality; it says nothing about making pastries for homosexuality. Just as the law shouldn’t protect gay peoples’ right to cake, it shouldn’t protect religious peoples’ right to be rude to people they don’t approve of, even if religion is the basis of that disapproval, so how is it a religious rights issue? I’m missing the logic.

Trump doesn’t care about gay marriage. He doesn’t care about abortion. He knows he needed to take the pro life position to win election, so that’s what he did. Just like he took the position he did on immigration and building walls. He knew that is what the public wanted to hear and they weren’t hearing it from anyone else. So he gave it to them and won.

All Trump really cares about is taking back control of the economy from those who have been screwing it for thirty years – with crushing tax laws, regulatory burdens, trade policies which welcome foreign made goods and shove domestic production overseas. That is why he ran and changing that is what he will accomplish before he leaves office.

Trump will appoint a “pro life” Justice because that is what his supporters want, what they expect, and what will drive them to keep him in charge in Washington. If he appoints that Justice, if he appoints a second one, those Justices will also vote to overturn Obergefell as well as Roe. The two stand or fall together on the basis of the same jurisprudence. Either the Constitution preserves the right of the states to right their own laws regulating the health and morals of their citizens, or it confers the right to overturn their judgment upon the Supreme Court of the United States. Trump understands that much. That is why he keeps repeating, emphasizing that reversing Roe will not ban abortions, only allow states whose people wish abortions banned to do so.

What you still haven’t gotten clear, Rod, is that Obergefell wasn’t about requiring all states to PERMIT gay marriage. It was about requiring states to LICENSE gay marriage, to give it the same status, the same public approval and succor, given to legitimate marriage. There is no such thing as a constitutional right to state succor. That is the great liberal dream, a Court ruling saying there is, a ruling saying everyone is entitled to the state affirming them and helping them in whatever they want to make of their lives – and the rest of us have to pay for it. This is why Obergefell needs to be overturned. And it can’t come too soon.

Siarlys,
I noted, parenthetically, that Full Faith and Credit was simply ignored in cases involving miscegenation laws for many years, as blatantly as the 14th Amendment was ignored more generally in segregation cases until Brown.
The fact that previous courts, a long time ago, chose to ignore the clear language of the Constitution, should not license us to repeat those sins. Modern precedent when it comes to marriage and related matters is fully on the side of requiring states to recognize each other’s acts in those regards, and that should include SSM. States should be free to refuse to perform them but they must recognize them when done elsewhere. That’s the closest I can get to a compromise on the issue which does not do violence to the plain language of the Constitution and latter-day precedent.